Chirag Kothari @APPELLANT@Hash State of Rajasthan & Ors

By way of this petition, the petitioner has questioned legality of the action of the Chief Election Officer, Students Union Election, Mohanlal Sukhadia

University, Udaipur, in accepting the nomination form of the respondent no.5 for the post of President, Students’ Union.

The nomination of the respondent no.5 is challenged by the petitioner on two grounds : firstly, he has got academic arrears and secondly, a criminal

case is registered against him for offences under Sections 327, 380 IPC at the Police Station, Pratap Nagar, Udaipur.

Regarding academic arrears, it is submitted that the respondent no.5 is declared fail in LLM First Semester Examination 2017-18. In this regard, the

statement of marks issued by the Controller of Examination of the respondent University is placed on record showing that the respondent has been

declared fail in the subject Legal Education and Research Methodology.

The respondents no.2 to 4 have filed reply to the writ petition taking the stand that as per the Constitution of University & College Students’

Union, there is a forum provided for resolving the election disputes and therefore, the writ petition preferred by the petitioner invoking extra ordinary

jurisdiction of this court without approaching the authority concerned for redressal of the grievance is not maintainable. Regarding the criminal case

being registered against the respondent no.5, it is submitted that as per Clause 7 (e) of the Constitution of University & College Students’ Union,

the candidate should not have a previous criminal record, that is to say, he should not have been tried and/or convicted of any criminal offence

punishable with imprisonment of more than two years. But in the instant case, in the FIR alleged to have been lodged the respondent no.5 has not been

named and since he is not tried or convicted for an offence punishable by imprisonment for more than two years, he has rightly not been debarred

from contesting the election. Regarding academic arrears, it has been clarified that after revaluation and correction of the error crept in the statement

of marks, the respondent no.5 has already been declared pass. In this regard, the correct statement of marks issued to the respondent no.5 is placed

on record. Thus, according to the respondent University, the respondent no.5 is not disqualified to contest the election and therefore, his nomination

has rightly been accepted by the Returning Officer.

Learned counsel appearing for the petitioner contended that the factum of a criminal case being registered against the respondent no.5 is not in

dispute inasmuch as, apprehending the rejection of his nomination form on account of the criminal case being registered against him, the respondent

no.5 had preferred a writ petition before this court seeking directions to the respondents not to reject his nomination form for Students’ Union

Election 2018, which was later withdrawn. Drawing the attention of the court to the declaration submitted by the respondent no. 5 alongwith the

nomination form placed on record by the respondent University, learned counsel submitted that the respondent no.5 has given a false declaration

wherein it is stated that no criminal case is pending against him in any court and thus, the Election Officer has wrongly accepted the nomination form

of the respondent no.5 without making an inquiry, despite the factum of the criminal case registered against him being brought on record. Learned

counsel would submit that nomination form of the respondent no.5 was liable to be rejected on account of furnishing false declaration regarding the

pendency of the criminal case. Keeping in view the documents placed on record on behalf of the respondent University showing that the respondent

no.5 has been declared pass in LLM First Semester Examination 2017-18 after revaluation and correction of the error crept in the statement of marks,

the challenge to the acceptance of the nomination form on the ground that the respondent no.5 has got academic arrears, is not pressed by the counsel

for the petitioner.

On the other hand, learned counsel appearing for the respondent submitted that as per the recommendations of Lyngdoh Committee so also as per

Clause 7(e) of the Constitution of University & College Students’ Union, a candidate shall be disqualified to contest the election on the ground of

previous criminal record only when he has been tried and/or convicted of any criminal offence punishable with the imprisonment of more than two

years and thus, merely on account of an FIR being registered against the respondent no.5 for offences under Section 327 & 380 IPC, his candidature

could not have been rejected. It is submitted that the declaration in the prescribed form has to be read in context of the eligibility qualification

prescribed and thus, the action of the Election Officer in accepting the nomination form of the respondent no.5 cannot be faulted with.

I have considered the rival submissions and perused the material on record.

Indisputably, the respondent no.5 filed the nomination form for the post of President of the Students’ Union on 25.8.18. Against his nomination,

objections were filed by two persons namely; Shri Lalit Singh Shishodia and Shri Vinja Ram Solanki. The petitioner did not raise any objection. A

perusal of the application raising objections submitted by Shri Lalit Singh Shishodia placed on record as Annexure 4 reveals that it is mentioned therein

that there is a serious charge of committing theft against the respondent no.5. The allegation was based on a news item. In absence of any concrete

proof regarding pendency of criminal case against the respondent no.5, the objection was rejected by the Returning Officer. It is pertinent to note that

no objection regarding alleged false declaration submitted by the respondent no.5 was raised by the persons who filed the objections or the petitioner at

the time of scrutiny of the nomination form. Even according to the petitioner, he had submitted the objections in this regard by way of representation

dated 5.9.18. Firstly, the representation made does not contain any allegation regarding submission of the false declaration and secondly, the

representation made subsequent to the declaration of list of the candidates whose nomination forms were found valid, could not have been looked into

by the Returning Officer so as to review its decision in accepting the nomination form.

That apart, as per the recommendations of the Lyngdoh Committee as also as per the provisions incorporated in Constitution of the Students’

Union of the respondent University, the nomination of the candidate is not liable to be rejected merely on account of an FIR being registered against

him. As per recommendations of Lyngdoh Committee vide Clause 6.5.7, a candidate contesting the election should not have a previous criminal record

that is to say, he should not have been tried and convicted of any criminal offence of misdemeanor. Likewise, in furtherance of the recommendations

made by the Lyngdoh Committee which is adopted by the respondent University pursuant to the directions of the Hon’ble Supreme Court, Clause

7(e)(i) incorporated in the Constitution of the Students’ Union of the respondent University, reads as under:

“ The candidate shall not have a previous criminal record, that is to say he should have not been tried and/or convicted of any criminal offence

punishable with imprisonment of more than two years.â€​

Admittedly, pursuant to the FIR registered, the matter is under investigation and no charge sheet has been filed by the police against the

respondent no.5 in the criminal court of competent jurisdiction. It is settled law that trial in a warrant case starts with the framing of the charge and

prior to it, the proceedings are only an inquiry. Thus, a person in a warrant case can be said to be under trial only when the charges are framed against

him by the competent court. In other words, the trial commences with the framing of the charge. Thus, in the instant case where the matter is still

under investigation by the police and the respondent no.5 is not under trial, he cannot be considered to be disqualified to contest the election in terms of

Clause 7(e)(i) of the Constitution of the Students’ Union. In this view of the matter, even if the concrete proof regarding the criminal case being

registered against the respondent no.5 would have been available before the Returning Officer, the nomination form of the respondent no.5 could not

have been rejected.

There is yet another aspect of the matter. It is settled law that the election should not be held up and the person aggrieved should not be permitted

to raise his individual interest during the election process commencing from the issuance of the notification calling upon the electors to elect the

candidates till the result is declared. At this stage when the polling for election is already over and only the results are to be declared, this court is not

inclined to entertain the petition preferred by the petitioner questioning the alleged action of the Returning Officer in accepting the nomination form of

the respondent no.5. It is always open for the petitioner to raise the election dispute on all available grounds before the Grievance Redressal Cell

constituted under the Constitution of Students’ Union for resolving the election disputes.

In view of discussion above, the petition is devoid of any merit, it is hereby dismissed. No order as to costs.